This analysis is the third in a series on the history of the DACA program, which provides protection from deportation to certain illegal immigrants who entered the US when they were younger than 16.
President Donald Trump promoted a very different perspective on immigration than his predecessor, Barack Obama.
Trump attempted to terminate the DACA program, which the Obama administration created through executive action. But like Obama, Trump’s approach to DACA wound up in federal court.
Donald Trump announced his presidential campaign in June 2015 by giving a speech where he called Mexican immigrants drug smugglers, criminals, and rapists.
“When Mexico sends its people, they're not sending their best,” Trump said. “They're not sending you. They're not sending you. They're sending people that have lots of problems, and they're bringing those problems with us. They're bringing drugs. They're bringing crime. They're rapists. And some, I assume, are good people.”
Throughout his campaign, Trump criticized immigrants in hateful and bigoted ways.
During his rallies, Trump would often recite the lyrics to “The Snake,” a soul song released by Al Wilson in 1968.
Trump used the song to warn against the dangers of immigration.
The song describes a woman who finds a snake that is on the brink of death. After the woman nurses the snake back to life, the venomous snake bites the woman, killing her.
The song ends with the snake telling the woman, “you knew damn well I was a snake before you took me in.”
Trump used these lyrics to describe how he viewed immigrants.
Immigration was a centerpiece of Trump’s campaign.
Trump pledged to build a wall on the US-Mexico border and crack down on illegal immigration.
Rescinding DACA
Trump also campaigned on ending the DACA program, which he said he would “immediately terminate” if elected.
After Trump took office, officials in his administration began implementing his immigration agenda.
Remember Jeff Sessions? He was a Republican Senator from Alabama who voted against the DREAM Act in 2010.
Trump nominated Sessions to be his Attorney General, and the US Senate confirmed the nomination in Feb. 2017 by a vote of 52 to 47. Sessions, who was still a senator when the vote was taken, voted present.
On June 15, 2017, Department of Homeland Security (DHS) Secretary John Kelly rescinded the DAPA program and DACA expansion, both of which had been blocked by federal judges during the Obama administration.
Primary Source: DAPA Cancelation Memo
On June 29, 2017, Texas Attorney General Ken Paxton wrote a letter to Attorney General Jeff Sessions on behalf of the states that had sued the federal government over DAPA.
Paxton said the states would amend
their lawsuit to challenge the legality of DACA unless that program was also terminated.
“If, by September 5, 2017, the Executive Branch agrees to rescind the June 15, 2012 DACA memorandum and not to renew or issue any new DACA or Expanded DACA permits in the future, then the plaintiffs that successfully challenged DAPA and Expanded DACA will voluntarily dismiss their lawsuit currently pending in the Southern District of Texas,” Paxton wrote.
“Otherwise, the complaint in that case will be amended to challenge both the DACA program and the remaining Expanded DACA permits.”
Primary Source: Paxton Letter
After receiving Paxton’s letter, Sessions sent a letter to Acting DHS Secretary Elaine Duke advising that he believed the DACA program was illegal. Sessions sent his letter on Sept. 4, 2017.
“DACA was effectuated by the previous administration through executive action, without proper statutory authority and with no established end-date, after Congress' repeated rejection of proposed legislation that would have accomplished a similar result,” Sessions wrote. “Such an open-ended circumvention of immigration laws was an unconstitutional exercise of authority by the Executive Branch.”
Sessions explained federal courts had prevented a related Obama Administration program, known as DAPA, from taking effect.
“Because the DACA policy has the same legal and constitutional defects that the courts recognized as to DAPA, it is likely that potentially imminent litigation would yield similar results with respect to DACA.” he wrote.
Primary Source: Sessions’s Letter
The next day, Acting DHS Secretary Elaine Duke rescinded the DACA program in response to Sessions’s letter.
“Taking into consideration the Supreme Court’s and the Fifth Circuit’s rulings in the ongoing litigation, and the September 4, 2017 letter from the Attorney General, it is clear that the June 15, 2012 DACA program should be terminated,” Duke wrote.
Primary Source: DACA Recission Memo
Duke terminated the DACA program on September 5, 2017, the final day Paxton had given the federal government to terminate DACA before he would expand his lawsuit to challenge the program.
In her rescission memo, Duke announced how DHS would gradually wind-down the DACA program.
Duke stated DHS would not terminate the temporary grants of deferred action from deportation that had been already provided under the DACA program, and that DHS would consider DACA renewal requests for current recipients whose eligibility was set to expire within the next six months, if those renewal requests were sent to the department within the next month.
But she said DHS would reject all initial requests to join the DACA program, and the DHS would reject all renewal requests that didn’t meet the criteria described above.
The Policy Case Against DACA
Sessions gave a speech explaining the Trump administration’s decision to terminate the DACA program.
Sessions said the Obama administration created DACA unconstitutionally after Congress rejected legislation that would have achieved a similar result.
“This policy was implemented unilaterally to great controversy and legal concern after Congress rejected legislative proposals to extend similar benefits on numerous occasions to this same group of illegal aliens,” Sessions said.
“In other words, the executive branch, through DACA, deliberately sought to achieve what the legislative branch specifically refused to authorize on multiple occasions. Such an open-ended circumvention of immigration laws was an unconstitutional exercise of authority by the Executive Branch.”
In addition to these concerns about the separation of powers, Sessions also outlined ways he believed DACA had been harmful.
Tens of thousands of unaccompanied minors traveled to the US from Central America in the early 2010s. Sessions said favorable treatment of dreamers under the DACA program helped attract these immigrants.
“The effect of this unilateral executive amnesty, among other things, contributed to a surge of unaccompanied minors on the southern border that yielded terrible humanitarian consequences,” he said.
Newly arriving immigrants wouldn’t have qualified for the DACA program, even under its expanded form.
Notably, these unaccompanied minors were fleeing from violence and criminal gangs in their home countries. They were also motivated by better economic conditions in the US.
A report published by the US Government Accountability Office (GAO) in 2015 cited crime, violence, and economic concerns as the primary causes behind the surge in migration of unaccompanied minor children from El Salvador, Guatemala, and Honduras to the US.
Primary Source: GAO Report
The GAO report also cited educational concerns, the desire for family reunification, and aggressive recruiting by smugglers.
The report said some US officials believed perceptions of US immigration policy played a role, with one State Department official stating that some Hondurans believed comprehensive immigration reform would lead to a path to citizenship for anyone living in the US at the time the reform was approved.
But the report never mentioned the DACA program.
A study in the scientific journal International Migration determined DACA did not significantly contribute to the increase in unaccompanied minors who traveled to the US.
The study concluded violence in migrants’ home countries and economic conditions were major factors responsible for the surge in unaccompanied minors.
The study also cited the 2008 Williams Wilberforce Trafficking Victims Protection Reauthorization Act as a major cause.
According to the study, that law required immigration officials to release unaccompanied minors from Central America into the custody of family or sponsors while they waited for a deportation hearing. This policy allowed migrant children to remain in the US, in some cases for years.
Economic Impact
Sessions said the DACA program also allowed DACA recipients to receive jobs that would have otherwise gone to native-born Americans.
“It also denied jobs to hundreds of thousands of Americans by allowing those same jobs to go to illegal aliens,” he said.
An NPR fact check, written by reporter Danielle Kurtzleben, concluded that, “on a large scale or in the long run, there is no reason to think DACA recipients have a major deleterious effect on American workers’ employment chances. What’s more, some economists believe DACA is actually a boost to the economy.”
Kurtzleben explained that there aren’t a fixed number of jobs in the US economy.
“It's
likely true that on an individual-by-individual level, there are some DACA
recipients who have jobs that native-born or naturalized workers might
otherwise have. And it's possible then, that if those DACA recipients no longer
could work, there would be other people to take their places. And on the
surface, that logic seems to make sense," she wrote.
"But workers are
also consumers — they spend their paychecks and grow the economy," she added.
"Not only that, but these workers also bring with them skills and education and contribute to the economy.”
At the same time, not all native American workers benefit from immigration.
Economics professor George Borjas
wrote an analysis for Politico
in October 2016 where he explained that some native workers are harmed by
competition from immigrants.
“Here’s the problem with the current immigration debate: Neither side is revealing the whole picture,” Borjas wrote.
“Trump might cite my work, but he overlooks my findings that the influx of immigrants can potentially be a net good for the nation, increasing the total wealth of the population. Clinton ignores the hard truth that not everyone benefits when immigrants arrive. For many Americans, the influx of immigrants hurts their prospects significantly.”
All of this is to say that the economic impact of immigration is complicated, and not as simple as saying that every employed immigrant results in one less available job for a native American worker. The economic dynamics of immigration are more complicated than that.
Trump released a statement
in response to DACA’s rescission. Trump said he would work with Congress to create a legislative solution for DACA recipients.
“As I’ve said before, we will resolve the DACA issue with heart and compassion – but through the lawful Democratic process – while at the same time ensuring that any immigration reform we adopt provides enduring benefits for the American citizens we were elected to serve,” he said. “We must also have heart and compassion for unemployed, struggling, and forgotten Americans.”
That day, Trump tweeted, “Congress, get ready to do your job — DACA!”
No Congressional Solution
As anyone could have predicted, Congress was unable to agree on a solution.
In June 2019, the House of Representatives, which had a Democratic majority, approved the latest version of the DREAM Act.
In both 2017 and 2019, South Carolina Republican Lindsey Graham introduced the DREAM Act in the Republican Senate. Both times, the bill was referred to the Judiciary Committee, but the chamber took no further action on the bill.
New legal challenges
If Trump administration officials believed rescinding DACA would prevent further litigation, they were completely mistaken.
Once
again, the dispute over DACA ended up in federal court. This time, supporters of the DACA sued the Trump administration to protect the program.
Several plaintiffs, including DACA recipients, Democratic states, the Regents of the University of California, and the NAACP, sued in federal court to challenge the legality of the Trump administration’s termination of the DACA program.
Federal courts implemented nationwide preliminary injunctions preventing the Trump administration from ending the DACA program, based on their conclusion that the Trump administration’s decision was likely arbitrary and capricious under the Administrative Procedure Act (APA).
The Ninth Circuit Court of Appeals affirmed one of the nationwide injunctions on November 8, 2018, on the grounds that the termination of DACA was likely arbitrary and capricious under the APA.
Primary Source: Ninth Circuit Decision
A report from US Citizenship and Immigration Services estimated about 644,000 people were enrolled in the DACA program on March 31, 2020.
Supreme Court Decision
On June 18, 2020, the Supreme Court, in a 5-4 decision, ruled the Trump administration’s repeal of DACA violated the APA. The court said that while the administration had the authority to rescind DACA, the way it had attempted to do so had been illegal.
Chief Justice John Roberts joined the court’s four liberal justices to form a majority. Roberts wrote the majority opinion.
Roberts cited a portion of the Fifth Circuit’s decision in the DAPA case that stated, “neither the preliminary injunction nor compliance with the APA requires the Secretary to remove any alien or to alter his enforcement priorities.”
Roberts cited this portion of the decision to conclude that the Fifth Circuit had only determined the work authorization and public benefits that resulted from DAPA were illegal. Roberts said the Fifth Circuit decision hadn’t determined the protection from deportation offered under the DAPA program was itself illegal.
Roberts ruled the rescission of DACA was arbitrary and capricious under the APA because Acting DHS Secretary Duke didn’t consider whether to continue to offer DACA recipients forbearance from deportation while terminating their eligibility for work authorization and public benefits.
Roberts also determined the rescission of DACA was arbitrary and capricious because Duke failed to consider the importance of the reliance interests of DACA recipients, who had planned major life decisions around their expected future inclusion in the program.
Primary Source: Supreme Court Decision
Justice
Sonia Sotomayor was the only justice who supported allowing the plaintiffs to
continue to develop their claim that the termination of DACA was illegal under
the Equal Protection Clause. The plaintiffs argued comments made by President
Trump helped demonstrate the decision to terminate DACA was illegally motivated by hateful discrimination.
Justice Clarence Thomas wrote the lead dissent. His decision was joined by Samuel Alito and Neil Gorsuch.
Thomas ruled the Trump administration’s decision to terminate the DACA program was legal because the Trump administration was correct that the Obama administration’s creation of the program had been illegal.
Justice Brett Kavanaugh wrote in his dissent that the Supreme Court should have considered a memo DHS Secretary Kirstjen Nielsen submitted during the litigation over the DACA rescission. Nielsen offered additional reasons why the Trump administration wanted to end the DACA program.
Roberts, and the court’s majority, didn’t accept the Nielsen memo for the purposes of their APA analysis because Nielsen claimed to be elaborating on Duke’s original decision to rescind DACA, when in fact Nielsen was adding additional reasons for the decision after the fact.
Roberts said Nielsen could have chosen to consider anew whether to terminate the DACA program, but instead chose to try to explain Duke’s earlier decision.
Roberts and the court’s majority thus limited their decision to the reasons DHS had considered at the time it chose to rescind the DACA program.
Due to the Supreme Court’s decision, the embattled DACA program remained in place.
A Parting Blow
But that wasn’t the Trump administration’s final attempt to terminate DACA.
Acting DHS Secretary Chad Wolf announced that in response to the Supreme Court’s decision, DHS would consider the future of DACA, including whether to once again attempt to fully rescind the program.
Wolf issued a memo on July 28, 2020, that explained some of the administration’s concerns. In the memo, Wolf said DHS would reject all initial requests to join the DACA program and would approve renewal requests submitted by existing DACA recipients for one year rather than two.
On November 14, 2020, Federal Judge Nicholas Garaufis ruled that Wolf was not lawfully serving as Acting DHS Secretary when he issued the memo, because DHS failed to follow its order of succession as designated under the Homeland Security Act.
On Dec. 4, 2020, Garaufis vacated the changes Wolf made to DACA.
Primary Source: Garaufis’s Order
A Personal Story
Luis Cortes Romero, a DACA recipient, was one of the attorneys who challenged the Trump administration’s attempt to end the DACA program. Romero spoke with Dahlia Lithwick on Slate’s Amicus podcast about the legal challenge and what the DACA program has meant for him.
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